S. THOMAS ANDERSON, District Judge.
On May 21, 2012, Defendant Rico Rice, Bureau of Prisons inmate registration number 22829-076, an inmate at the Federal Correctional Institution (""FCI") in Forrest City, Arkansas, filed a motion pursuant to 28 U.S.C. § 2255 alleging that trial counsel provided ineffective assistance. (ECF No. 1.) On February 6, 2013, the Court directed the United States to respond to the motion to vacate. (ECF No. 6.) On March 27, 2013, the United States filed an answer contending that Defendant's motion is without merit. (ECF No. 10.) On April 26, 2013, Defendant filed a reply. (ECF No. 11.)
On March 24, 2009, a federal grand jury returned a three-count indictment against Defendant Rico Rice. (Indictment, Criminal ("Cr.") ECF No. 6.) Defendant Rice was charged with possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g) (Count One); possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)6> (Count Two); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Three). (Id.) On February 22, 2010, Attorney Jim Thomas filed a motion to suppress. (Cr. D.E. 29.) On May 13, 2010, the Court held an evidentiary hearing on Defendant's motion to suppress all evidence acquired as a result of his traffic stop. (Cr. ECF No. 39.) After listening to the testimony of Officer Eugene Burnett and reviewing the following exhibits: (1) the tow recovery report form; (2) Defendant's arrest ticket; (3) the Memphis Police Department tow policy; (4) the vehicle search form; (5) the vehicle seizure form; and (6) the evidence bag, the Court denied the motion to suppress. (Id.) The Court stated:
(Cr. ECF No. 67 at PageID 139-41.)
On June 2, 2010, Defendant Rice filed a pro se motion to dismiss counsel. (Cr. ECF No. 24.) On June 24, 2010, Attorney Thomas filed a motion seeking to withdraw from Defendant's representation based on "a complete breakdown in effective communication." (Cr. ECF No. 43.) On June 29, 2010, Chief United States Magistrate Judge Diane K. Vescovo granted counsel's motion to withdraw and appointed new counsel for Defendant. (Cr. ECF Nos. 46-47.) On February 24, 2011, Attorney Linda Garner filed a motion to dismiss the indictment based on a violation of the Speedy Trial Act. (Cr. ECF No. 55.) On March 3, 2011, Rice pled guilty to Count Three of the indictment, pursuant to a written plea agreement. (Minute ("Min.") Entry, Cr. ECF No. 57.)
The plea agreement provided as follows:
(Plea Agreement, Cr. ECF. 58 at PageID 68-71.)
Defendant advised that Court that he had discussed his case "completely and fully" with his attorney, that she had "been able to explain to [his] satisfaction what the facts of the case are, what the law would be that would apply to those facts and what [his] options are about whether to plead guilty or go to trial," and that he was "satisfied with [her] representation." (Cr. ECF No. 69 at PageID 148-49.) Defendant told the Court he understood that he was "giving up [his] right to appeal [his] conviction." (Id. at PageID 151.) The United States summarized the evidence:
(Id. at PageID 160-62.) The Defendant admitted that the statements concerning his possession of the Taurus 40 caliber semi-automatic pistol were substantially true and correct and that he "intentionally possess[ed] a Taurus 40 caliber semi-automatic pistol while engaged in a drug trafficking crime for which [he] could be prosecuted." (Id. at PageID 162-63.) The Court accepted Defendant's guilty plea. (Id. at PageID 163.) Defense counsel made an oral motion to withdraw the motion to dismiss the indictment which was granted by the Court. (Id. at PageID 164.)
On June 9, 2011, the Court sentenced Defendant Rice to seventy months of imprisonment, to be followed by a three-year term of supervised release. (Min. Entry, Cr. ECF. 62.) The Court's judgment was entered on June 10, 2011. (Judgment ("J."), Cr. ECF No. 63.) Rice appealed. (Cr. ECF No. 65.)
On appeal, Rice attempted to challenge the denial of the motion to suppress. (Cr. ECF No. 71.) The United States Court of Appeals for the Sixth Circuit dismissed Rice's appeal, stating:
(Id. at PageID 174-76.)
On May 21, 2012, Defendant filed this motion to vacate alleging that his attorney provided ineffective assistance by advising him to enter into a plea agreement that waived his right to appeal the motion to suppress and by failing to investigate the case. (ECF No. 1 at PageID 1-2.) The United States has responded that Rice's motion is without merit and should be denied. (ECF No. 10.)
Pursuant to 28 U.S.C. § 2255(a),
"A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (citation and internal quotation marks omitted).
A § 2255 motion is not a substitute for a direct appeal. See Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). "[N]onconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings." Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). "Defendants must assert their claims in the ordinary course of trial and direct appeal." Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). This rule is not absolute:
Id.
Even constitutional claims that could have been raised on direct appeal, but were not, will be barred by procedural default unless the defendant demonstrates cause and prejudice sufficient to excuse his failure to raise these issues previously. El-Nobani v. United States, 287 F.3d 417, 420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 698-99 (6th Cir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v. United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a defendant may obtain review of a procedurally defaulted claim by demonstrating his "actual innocence." Bousley v. United States, 523 U.S. 614, 622 (1998).
After a § 2255 motion is filed, it is reviewed by the Court and, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion. . . ." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts ("Section 2255 Rules"). "If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order." Id. The movant is entitled to reply to the Government's response. Rule 5(d), Section 2255 Rules. The Court may also direct the parties to provide additional information relating to the motion. Rule 7, Section 2255 Rules.
"In reviewing a § 2255 motion in which a factual dispute arises, `the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims.'" Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). `"[N]o hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Id. (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). Where the judge considering the § 2255 motion also presided over the criminal case, the judge may rely on his or her recollection of the prior case. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996); see also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977) ("[A] motion under § 2255 is ordinarily presented to the judge who presided at the original conviction and sentencing of the prisoner. In some cases, the judge's recollection of the events at issue may enable him summarily to dismiss a § 2255 motion."). Defendant has the burden of proving that he is entitled to relief by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
A claim that ineffective assistance of counsel has deprived a defendant of his Sixth Amendment right to counsel is controlled by the standards stated in Strickland v. Washington, 466 U.S. 668 (1984). To demonstrate deficient performance by counsel, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 688.
Harrington v. Richter, 131 S.Ct. 770, 787 (2011).
To demonstrate prejudice, a prisoner must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
Richter, 131 S. Ct. at 787-88; see also id. at 791-72 ("In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. . . . The likelihood of a different result must be substantial, not just conceivable." (citations omitted)); Wong v. Belmontes, 558 U.S. 15, 27 (2009) (per curiam) ("But Strickland does not require the State to `rule out' [a more favorable outcome] to prevail. Rather, Strickland places the burden on the defendant, not the State, to show a `reasonable probability' that the result would have been different." (citing Strickland, 466 U.S. at 694)).
"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
Richter, 131 S. Ct. at 788.
The Sixth Circuit Court of Appeals previously determined that Rice's plea was knowing and voluntary when enforcing Rice's waiver of his right to appeal. (Cr. ECF No. 71 at PageID 176.) As such, the decision on appeal precludes Rice, who is now proceeding collaterally, from relitigating the validity of his waiver. See, e.g., Jones v. United States, 178 F.3d 790, 796 (6th Cir.1999) ("It is equally well settled that a § 2255 motion may not be employed to relitigate an issue that was raised and considered on direct appeal absent highly exceptional circumstances.") The waiver did not, however, bar Rice's claims of ineffective assistance on collateral review.
Rice argues that he entered into his plea agreement and waiver of appellate rights because of ineffective assistance of counsel. (ECF No. 1 at PageID 18.) He alleges that reservation of the right to appeal the denial of his motion to suppress "could have [resulted in] vacat[ion of] the conviction." (Id.) He does not further develop his argument with facts. As set forth above, a movant must allege facts in his § 2255 petition which would justify relief. Rice has not done so and only makes a conclusory allegation of ineffective assistance of counsel.
To the extent Rice is arguing that his plea agreement, and the appellate waiver contained therein, was not entered into knowingly and voluntarily, the record in this case establishes otherwise. First of all, the Sixth Circuit Court of Appeals has already determined that he acted knowingly and voluntarily with respect to the entry of his plea agreement and the appellate waiver. The Sixth Circuit specifically held that the district court complied fully with the requirements of Rule 11 and determined "that Rice entered his plea agreement knowingly and voluntarily, and the waiver is thus effective." (Cr. ECF No. 71 at PageID 175.) Rice has set forth no facts which were not known by the Sixth Circuit at the time of that ruling and he is now bound by the Sixth Circuit holding.
Secondly, the transcript of the change of plea hearing clearly dispels any notion that Defendant's guilty plea or waiver of appellate rights was anything other than fully knowledgeable and voluntary. (Cr. ECF No. 69 at PageID 147-65.) This Court complied fully with the requirements of Rule 11 and made a specific finding that "the defendant has offered to plead guilty knowingly and voluntarily. Rice acknowledged during the change of plea hearing that he was pleading guilty to Count Three of the indictment because he intentionally possessed a Taurus 40 caliber semiautomatic pistol while engaged in a drug trafficking crime and he acknowledged at multiple times during the change of plea hearing his understanding that his plea agreement, made pursuant to Rule 11(c)(1)(C), required the Court to impose a 70 month term of imprisonment. (Id.) With respect to the appellate waiver contained in his plea agreement, Rice specifically acknowledged that he understood the waiver and that he had fully discussed the waiver with his attorney and signed the plea agreement because he believed it was the best thing for him to do. (Id. at PageID 160.)
Rice's negotiated plea agreement under Rule 11(c)(1)(c) resulted in the dismissal of the remaining two counts of the indictment and limited his potential term of imprisonment to seventy months. Had Rice chosen to go to trial and been convicted of all charged counts, he risked a potential sentence of ten years in prison on Counts One and Two, plus five consecutive years in prison on Count Three. There is no support in the record for any contention by Rice that the government would have offered a plea other than the one which was offered or that counsel somehow could have secured a more favorable plea agreement. Defendant fails to identify any defense to any count of the indictment that would have resulted in a different plea offer or that would have been a basis for proceeding to trial. The evidence against Defendant was overwhelming. Rice cannot establish that the United States would have consented to litigate the suppression issue on direct appeal or would have offered a conditional guilty plea agreement.
Counsel did not provide ineffective assistance where the facts to which Defendant admitted were adequately supported by the evidence and supported a finding of guilt. Rice's counsel did not perform deficiently by counseling her client to enter an unconditional guilty plea-thereby waiving his right to appeal-rather than risk going to trial and face a potential sentence of one hundred eighty years. This issue is without merit and is DENIED.
Defendant Rice contends that his second attorney, Linda Garner, should have hired a private investigator, obtained the dispatch log and dash cam footage of his arrest, and interviewed the arresting officer to demonstrate that his Fourth Amendment rights were violated. (ECF No. 1 at PageID 19-20.) Rice repeats the legal argument presented by his first attorney and rejected by the Court at the conclusion of the suppression hearing. (Id. at PageID 20.)
Attorney Linda Garner was not the attorney who filed and litigated Defendant's motion to suppress before this Court. The arresting officer gave sworn testimony. No witnesses testified on behalf of Defendant. No proof was presented to support Defendant's argument that the evidence seized during his arrest should be suppressed. Defendant's relationship with the Attorney Thomas deteriorated shortly after the Court denied the motion. There is no basis in the record to conclude that any proof existed that would have caused this Court to reconsider the denial of Defendant's motion to suppress.
Defendant Rice has produced no witnesses, affidavits, or evidence that either attorney should have presented to this Court or on appeal. Rice has not supported his argument with any fact establishing a reasonable probability that Garner should or could have taken any further action after her appointment that would have caused the Court to reconsider its ruling. He has not identified any appealable error in this Court's ruling on the motion to suppress. Rice has failed to establish either deficient performance or prejudice by his attorney. This issue is without merit and is DENIED.
The motion, together with the files and record in this case "conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Defendant's conviction and sentence are valid and, therefore, his motion to vacate (ECF No. 1) is DENIED. Judgment shall be entered for the United States.
Pursuant to 28 U.S.C. § 2253(c)(1), the district court is required to evaluate the appealability of its decision denying a § 2255 motion and to issue a certificate of appealability ("COA") "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Fed. R. App. P. 22(b). No § 2255 movant may appeal without this certificate.
A COA may issue only if the movant has made a substantial showing of the denial of a constitutional right, and the COA must indicate the specific issue or issues that satisfy the required showing. 28 U.S.C. § 2253(c)(2), (3). A "substantial showing" is made when the movant demonstrates that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citation and internal quotation marks omitted); see also Henley v. Bell, 308 F. App'x 989, 990 (6th Cir. 2009) (per curiam) (same). A COA does not require a showing that the appeal will succeed. Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App'x 809, 814-15 (6th Cir. 2011). Courts should not issue a COA as a matter of course. Bradley v. Birkett, 156 F. App'x 771, 773 (6th Cir. 2005) (quoting Miller-El, 537 U.S. at 337).
In this case, for the reasons previously stated, Defendant's claim lacks substantive merit and, therefore, he cannot present a question of some substance about which reasonable jurists could differ. The Court therefore DENIES a certificate of appealability.
The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28 U.S.C. § 1915(a)-(b), does not apply to appeals of orders denying § 2255 motions. Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2255 case, and thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the prisoner must obtain pauper status pursuant to Fed. R. App. P. 24(a). Kincade, 117 F.3d at 952. Rule 24(a) provides that a party seeking pauper status on appeal must first file a motion in the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a) also provides that if the district court certifies that an appeal would not be taken in good faith, or otherwise denies leave to appeal in forma pauperis, the prisoner must file his motion to proceed in forma pauperis in the appellate court. See Fed. R. App. P. 24(a) (4)-(5).
In this case, for the same reasons the Court denies a certificate of appealability, the Court determines that any appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant to Fed. R. App. P. 24(a), that any appeal in this matter would not be taken in good faith, and leave to appeal in forma pauperis is DENIED.
